CAN I HOLD MY EMPLOYER LIABLE FOR CONTRACTING COVID-19 AT WORK?

South Africa has now downgraded to Level 3 of the National Lockdown and more businesses are allowed to operate under this level. This results in more workers returning back to work, it has in fact been reported that approximately eight (8) million people are due to return to work under level 3. The opening of the economy carries the risk of increase of infections most especially at various workplaces. The question which is in people’s minds is what recourse is available to an employee after contracting the virus at their work.

Should I sue my employer?

The Compensation for Occupational injuries and Diseases Act 130 of 1993 (COIDA) is a piece of legislation which deals with occupational injuries and diseases contracted at the workplace. The main purpose of the Compensation for Occupational Injuries and Diseases Act (COIDA) is to provide compensation for all permanent, casual, temporary or contracted employees, who in the course of their employment might have suffered:

1. disablement as a result of a work-related injury;

2. disablement as a result of contracting a work-related disease, or

3. death as a result of a work-related injury or disease.

The purpose of COIDA is to step into the shoes of the employer and indemnifies employers covered by the legislation from claims of damages by employees. Occupationally acquired COVID-19, refers to when a person contracts COVID-19 arising out of and during the course of employment. In order for an employee to claim they must have acquired COVID-19 as a result of a single or multiple exposures to confirmed case(s) of COVID-19 in the workplace or after an official trip to high risk countries or areas by an individual who was previously COVID-19 free.

On the 20th day of March 2020, the Compensation Fund Commissioner released a notice on Compensation for Occupationally acquired COVID-19 virus disease which provides a system and procedure on how claims of such nature ought to be dealt with. It further provides different levels of Occupations that are at risk of exposure to the virus.

A claim for occupationally acquired COVID-19 shall be set out in accordance with section 65 and 66 of the COID Act, and shall be supported by prescribed documents inclusive of a medical diagnosis report, which shall be assessed by the medical officers at the Compensation Fund if it is according to acceptable medical standards.

Exempted employers from registration

COIDA provides that all employers are required to register with the Commissioner. However, section 84(1)(b) of COIDA provides as follows:

No assessment in favour of the compensation fund shall be payable in respect of employees whose –

(b) employer has with the approval of the Director-General obtained from a mutual association a policy of insurance for the full extent of his potential liability in terms of this Act to all employees employed by him, for so long as he maintains such policy in force.

Conclusion

It is compulsory for every employer to register with the Compensation Fund. An employer who have a policy of insurance for the full extent of their potential liability, a policy which serve a similar purpose as the COIDA and approved by Director General, they will not be exempted from COIDA. Furthermore, employees who are employed under the National and Provincial spheres of government are excluded, including Local Authorities which have obtained certificate of exemption.

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